O.P Garg, J.:— In this petition the dispute relates to Premises No. 119/216 E (New No. 119/468) Om Nagar, Darshanpurwa, Kanpur Nagar (hereinafter referred to as the “tenanted house”) of which respondent No. 1 Ram Narain Shukla is the owner landlord. The petitioner Hirdai Narain Misra, it is an indubitable fact, has been the tenant of a portion of ground floor of the said house for the last more than four decades. It is also an admitted fact that the petitioner tenant was allotted on lease House No. 144/2 Daboli, Kanpur Nagar (hereinafter called as “Daboli House”) by the Kanpur Development Authority. The landlord moved an application on 23-4-1999 before the Rent Control and Eviction Officer/Additional City Magistrate-VI Kanpur Nagar for releasing the tenanted accommodation as a “deemed vacancy” has arisen on account of acquisition of Daboli House within the municipal limits of Kanpur Nagar in a vacant state by the tenant petitioner. After obtaining the report of the Rent Control Inspector dated 14-6-1999, a vacancy in respect of the tenanted accommodation was declared by order dated 29-5-2000, a copy of which is Annexure-5 to the petition. The application of landlord for release was fixed for hearing on 8-6-2000. On that date the petitioner moved an application for recalling the order of vacancy dated 29-5-2000, on which, it is alleged, notice was directed to be issued to the landlord for 4-7-2000. An order of release was passed in favour of the land-lord-respondent No. 1 on 8-6-2000 itself and From C was issued for eviction of the petitioner. It is alleged that the petitioner moved an application dated 12-6-2000 to recall the order of vacancy and release but the application was not entertained.

2. This writ petition was filed in Summer Vacations and was taken up on 22-6-2000. Sri A.N Sinha appeared on behalf of the landlord. Parties were directed to exchange counter and rejoinder affidavit. It was further directed that the petitioner would not be dispossessed till 31st August, 2000. This order has been extended from time to time. Counter and Rojoinder affidavits have been exchanged.

3. Heard Sri Rakesh Bahadur learned counsel for the tenant petitioner as well as S/Sri A.N Sinha and Chhotey Lal Kureel appearing on behalf of landlord at considerable length.

4. The moot point for consideration and determination in the present writ petition is whether on account of acquisition of Daboli House by the petitioner, a deemed vacancy under S. 12(3) of U.P Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972) (hereinafter referred to as ‘the Act’) has arisen in view of the assertions made by the parties.

5. The condition for the applicability of sub-sec. (3) of Section 12 of the Act dealing with the deemed vacancy are—

(i) There is a residential building let out to the tenant;

(ii) The tenant or any member of his family—

(a) builds,

(b) otherwise acquires in a vacant state; or

(c) gets vacated

a building which is

(i) residential, and

(ii) is situated in the same city, municipality, notified area or town area in which the building under tenancy is situated.

6. It is undisputed fact that the Kanpur Development Authority allotted Daboli House on lease in favour of the petitioner and his name came to be recorded in the Municipal Assessment Register for the years 1987-92 as owner of the said house with effect from 1st October, 1990. The case of the petitioner is that though the said house was allotted in his favour in the year 1982, possession was not delivered to him thereon. It is further averred that a Suit No. 1635 of 1994 was filed in respect of the said house by one R.N Dwivedi who claimed himself to be in possession of the house and later on handed over the possession to one Shiv Singh Rathore. The petitioner further claimed that on account of compelling circumstances due to paucity of funds, the petitioner sold the house in question in the year 1998 to one Anurag Sharma. The emphatic assertion of the petitioner is that the possession over the Daboli House was never delivered to or obtained by him and consequently the eventuality of deemed vacancy as contemplated under S. 12(3) of the Act did not arise and since there was no vacancy, deemed or actual, the tenanted house could not be released in favour of the landlord. On behalf of the landlord, it is maintained that the petitioner did acquire Daboli House and had obtained its possession and, therefore, Rent Control and Eviction Officer has rightly declared the vacancy and released the accommodation.

7. Sri Rakesh Bahadur, learned counsel for the petitioner, urged that the recall application which was moved by the petitioner on 8-6-2000 was directed to be put up on 4-7-2000 as would be evident from the copy of the order which is Annexure-7 to the petition. It was urged that when once the notice to other party had been issued for 4-7-2000 on the application of recall dated 8-6-2000, there appeared to be no earthly reason for passing the order of release on the same day. Be that as it may the question is whether on account of the admitted position that the petitioner has acquired by purchase the Daboli house from the Kanpur Development Authority, a deemed vacancy has arisen or not. The purchase of Daboli House and its susequent sale by the petitioner in favour of Anurag Sharma in the year 1998 is not in dispute. The only dispute is with regard to the fact whether the petitioner ever obtained the possession of the said house. The assertion on behalf of the petitioner is that the Daboli House which he acquired from the Kanpur Development Authority was also allotted to one R.N Dwivedi who had filed the civil suit to protect his possession and thus the petitioner was deprived of the benefit of possession after acquisition of the Daboli House and, therefore, it cannot be said that he had acquired Daboli House in a vacant state.

8. From the material on record, it appears that the plea of the petitioner that one R.N Dwivedi had intervened and asserted his possession over Daboli House and had, as a matter of fact, filed suit No. 1635 of 1994 is an afterthought. The fact remains that the petitioner did acquire Daboli House and got its possession in a vacant state. The suit, it appears, was the outcome of the manipulation made by the petitioner with a view to support his defence that Daboli House, though acquired, was not in a vacant state. This aspect of the matter came to be considered in Rajendra Singh v. District Judge, Kanpur (1986) 1 All. Rent Cas 116. In that case, the tenant who had purchased a new house in his name, tried to get over the effect of S. 12(3) by obtaining a collusive decree in a suit filed by his brother in Civil Court against him, in which it was declared that tenant was Benami owner of the house purchased. In the context of these facts, it was held that the decree was rightly held to be against the public policy behind S. 12(3) and, as such void. The Rent Control and Eviction Officer or the revisional authority were held not to be bound by the said decree. The order of vacancy was held to have been rightly notified. In the instant case also, the petitioner appears to have raised the bogey of not getting possession over Daboli House obviously with a view to negate the effect of Section 12(3) of the Act. If the petitioner had not, in fact, come in possession over Daboli House, he could not have sold the same subsequently in the year 1998 in favour of one Anurag Sharma. There is nothing on record to indicate that R.N Dwivedi who is alleged to have filed suit No. 1635 of 1994 was, in fact, in possession of Daboli House and after his eviction, the house was sold to Anurag Sharama. A house which was already in possession of R.N Dwivedi as claimed by the petitioner, could not have been purchased by Anurag Sharma from the petitioner.

9. It would be of no consequence that on the date on which the vacancy was declared the petitioner had ceased to own and occupy Daboli House. A deemed vacancy under the provisions of S. 12(3) of the Act arises the moment tenant obtains another premises. Subsequent changes are hardly relevant. In Sri Rajendra Prasad v. 9th Addl. District Judge, Kanpur — 1980 All. CJ - 194 : (1981 All. LJ NOC 6), it was held that the relevant date is the date when the vacancy occurred and not subsequent fact or subsequent user of the property. The matter also came to be discussed in another decision in Surendra Prasad Goel v. 1st Addl. District Judge, Muzaffarnagar (1987) 1 All. Rent Cas 276 : (1987 All. LJ 528), in which it was observed that as soon as tenant acquires in a vacant state or gets vacated a residential house a vacancy validly arises under S. 12(3) of the Act and if after acquiring in vacant state his own residential house he lets it out or parts with its possession without any objection the effect of the vacancy so arising is not wiped out or even suspended. For the application of S. 12(3), all that is required to be established is, firstly, that the tenant builds or otherwise acquires a residential building in the same city, and, secondly, gets vacant possession of the same or gets it vacated. On the proof of these two facts, a vacancy comes into being under S. 12(3) read with S. 12(4) of the act authorising the Rent Control and Eviction Officer to allot the building under the tenancy of the tenant. The Apex Court has also taken similar view in Smt. Mohini Badhwar v. Raghunandan Saran Ashok Saran (1989) 2 All. Rent cas 223 : ((1989) 3 SCC 72 : AIR 1989 SC 1492). In that case, acquisition of residence in a vacant possession by tenant was not denied but it was pleaded that soon after acquiring possession, the tenant sold it and, therefore, it was not available on the date the petition was filed for occupation by the tenant in a vacant state. It was held that the fact that the tenant lost possession of acquired residence when petition for eviction was filed would not protect the tenant against S. 14(1)(h) of Delhi Rent Control Act, 1958. Taking inspiration from the aforesaid decisions, I have no hesitation in coming to the conclusion that the fact that the petitioner had sold Daboli house which he acquired in a vacant state in the year 1998 to Anurag Sharma and thus lost its possession would hardly be germane or relevant for declaring vacancy of the tenanted accommodation. The fiction of deemed vacancy under Section 12(3) of the Act is now well settled. In Harish Tandon v. Addl. District Magistrate Allahabad (1995) 1 All. Rent Cas. 220 : ((1995) 1 SCC 537 : AIR 1995 SC 676) it was observed by the Apex Court that when a suit creates a fiction saying that something shall be deemed to have been done which in fact, in truth, has not been done, court has to examine and ascertain as to for what purpose and between what persons such statutory fiction is to be resorted to. Thereafter, full effect has to be given to such a statutory fiction and it has to be carried to its logical conclusion.

10. The sufficiency or otherwise of the accommodation acquired by the tenant in the vacant state is also not required to be gone into or sifted while declaring deemed vacancy under S. 12(3) of the Act. This aspect of the matter was considered by the Apex Court in a decision dated 23rd April, 1997 in Civil Appeal No. 15575 of 1996 Prakash Chandra Rastogi v. Rent Control and Eviction Officer, Kanpur Nagar. In that case, an argument was raised on behalf of the tenant that the room constructed by him was quite small and insufficient for residential use and, therefore, the construction of the said room should not be treated as construction of a residential structure so that the deemed vacancy under the Act can be declared. The Apex Court did not accept the said contention because house itself was residential one and the construction made in the open terrace, even though small, could not be held to be at all suitable for residential purpose.

11. In the conspectus of the above facts, there can be no escape from the conclusion that on account of the acquisition in a vacant state of Daboli House by the petitioner, a deemed vacancy under S. 12(3) of the Act had occurred and consequently, the tenanted accommodation was amenable for being allotted or for being released in favour of the landlord. When once the order of vacancy had been passed after taking into consideration the stand taken by the petitioner on 29-5-2000, the subsequent application moved by the petitioner on 8-6-2000 which was the date fixed for consideration of the application for release in favour of the landlord was otiose. Ignoring the said application, the Rent Control and Eviction Officer was empowered and legally justified to pass orders on the release application on the date fixed. The order of vacancy dated 29-5-2000 and the subsequent order of release dated 8-6-2000 do not suffer from any infirmity. They had been passed according to law.

12. It is, therefore, not a case in which invocation of Article 226 of the Constitution of India is warranted. The writ petition is dismissed.

13. Interim order dated 22-6-2000, which has been extended from time to time, shall stand discharged.

14. Petition dismissed.